Abbey v. Sullivan

MCLAUGHLIN, Circuit Judge: Plaintiffs are participants in the Medicare Part B program, 42 U.S.C. §§ 1395j-1395w. They presented claims for medical benefits to Empire Blue Cross and Blue Shield (""Empire"") and Blue Shield of Western New York (""BSWNY""); these are private insurance carriers with whom the government has contracted to administer the Part B claims process. Each plaintiff requested a ""fair hearing"" to review the award of benefits, and Hearing Officers (""HOs"") were assigned to conduct the hearings. Although such ""hearings"" are generally conducted solely on documentary evidence (called ""OTRs"" because they are based ""on the record""), the HOs here declined several plaintiffs' requests for OTR decisions and, instead, directed the plaintiffs to appear for ""in-person"" hearings where live testimony is taken. The HOs also rejected plaintiffs' requests for orders directing BSWNY to produce documents concerning the calculation of reimbursement rates for certain anesthesia services. Believing that they had a right to OTRs and to discovery prior to their hearings, plaintiffs flatly refused to participate in the in-person hearings. In the face of their intransigence, the HOs either dismissed plaintiffs' claims as abandoned, or, alternatively, ruled on the claims despite plaintiffs' refusal to participate in the hearings.